What is Death Penalty?

Death Penalty is a legal procedure of putting an offender to death through execution of him/her for a crime committed by them for which they are convicted by a court of law. It is judicial execution which is done keeping in mind of due process of law.

What happened in Shatrughan Chauhan & Anr Vs Union of India?

This case was brought before the court for commuting the death penalty for Shatrughan Chauhan and 14 other death convicts. The case of Shatrughan Chauhan v Union of India is considered a progressive step in Indian jurisprudence for the death penalty. It not only talked about the essentials of reasonability of time but also lead down guidelines for execution of the death penalty based on individual cases and save the interest of the death row convicts:-

Case Details

Citation	:	(2014) 3 SCC 1: (2014) SCC OnLine SC 50 : 2014 Cri LJ 1327
Court	:	Hon’ble Supreme Court of India
Decided on	:	January 21, 2014
Petitioners	:	Sri Shatrughan Chauhan  & Anr
Respondents	:	Union of India and Others
Corum	:	P. Sathasivam C.J and Ranjan Gogoi and Shiva Kirti Singh, JJ.

Facts of the case

The petitioners were convicted for their offences under section 302 of Indian Penal Code. Their conviction was finalised and they were awarded death sentence by the Allahabad High Court. The Supreme Court later dismiss their Criminal Appeal because of which two of the petitioners file before the Governor a mercy petition for their respective death sentences awarded to them. Meanwhile, the Review Petition (Crl.) was dismissed by the Supreme Court. The Governor rejected the mercy petition filed by the petitioners however no information was forwarded or given to the petitioners or their relatives. This mercy petition was rejected after taking nine months into consideration by the Governor. Further, there was a delay in the process of sending a copy of the judgment and information regarding the status of a mercy petition to the State of UP. It nearly took twelve months and three years for the furnishing of the documents. When on 8th February 2013 the mercy petitions were rejected by the President of India again no information given either to the petitioners or their relatives. In total the time taken up from filling mercy petition to the rejection of those petitions by President of India was observed to be 12 years and 2 months. This made the petitioners move to the Supreme Court with a Writ Petition with a prayer to issue a writ declaring the execution of their death to be unconstitutional has it was decided after it was rejected by the President of India and therefore commute their death sentence to imprisonment of life.

Judgment

The Court held that in our larger democratic country retribution do not hold any constitutional value in the society and the hallmark of our society is the evolution of mercy jurisprudence as a standard of decency. According to this jurisprudence, even an accused is protected by the Constitution and it is considered the duty of the Court to protect and shied the life of an accused.“Certainly, a series of the Constitution Benches of this Court have upheld the constitutional validity of the death sentence in India over the span of decades but these judgments in no way take away the duty to follow the due procedure established by law in the execution of sentence. Like the death sentence is passed lawfully, the execution of the sentence must also be in consonance with the constitutional mandate and not in violation of the constitutional principles.”[1]

It was further said by the court that the Article 72/161 gives the power to the Governor/President and is a constitutional obligation is not just a prerogative. The time limit for disposing of the mercy petition by these offices was not fixed considering the high status of these offices but it should be decided within a reasonable time frame. “However, when the delay caused in disposing of the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Right to seek mercy under Articles 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Every constitutional duty must be fulfilled with due care and diligence, otherwise, judicial interference is the command of the Constitution for upholding its values.”[2] Therefore the read petitions with commuting the death sentence to imprisonment for life.

Supreme Court’s Guidelines

1. Solitary Confinement: In the Sunil Batra[3] case it was held by the court that it is unconstitutional to keep a convict in solitary or single-cell confinement before the rejection of his/her mercy petition by the President. The rules as mentioned in the Prison Manual of each State should be in accordance with Article 21 of the Constitution and should be violative of it.
2. Legal Aid: There are no rules or provisions talking about the legal aid for the convicts in any States’ Prison Manual. Legal Aid such as aid for preparing appeals or mercy petitions or judicial remedies after the rejection of mercy petition is a fundamental right as provided under Article 21 of the Constitution. Therefore it is a right of the convict to access legal aid at all the stages. The convict can approach the Supreme Court after the rejection of mercy petition by a writ petition for commutation of the death sentence. They should also be informed of their mercy petition by the Superintendent of Jails and even to the nearest Legal Aid Centre.
3. Procedure in placing the mercy petition before the President: When such mercy petition is rejected by the Governor and is received by the State Government then necessary documents such as police records, judgment of the trial court, the High Court and Supreme Court and all the related “documents should be called at once fixing a time-limit for the authorities for forwarding the same to the Ministry of Home Affairs. This should be strictly followed to minimise the delay. After getting all the details, it is for the Ministry of Home Affairs to send the recommendation/their views to the President within a reasonable and rational time. Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required materials for early decision.”[4]
4. Communication of rejection by Governor for mercy petition: No prison manual provides for provisions that talk about informing the family of the convicts. The convict as provided to him under Article 161 can make a mercy petition to the Governor of which he should be informed in writing if the same is rejected. It should also be communicated to the convict’s family in writing or any mode available.
5. Communication of rejection by the President for mercy petition: Many Prison Manual provides for the communication of the rejection by the President of the mercy petition to the family of the convicts. The convicts have a constitutional right as per under Article 72 to make a mercy petition to the President. There are some Prison Manual which provides for informing the rejection of mercy petition orally and never in writing. As a constitutional right is rejected it should be communicated in writing to the convicts and his family.
6. Copy of rejected mercy petition should be supplied: It is right of the convicts to receive a copy of the rejected mercy petition in case of rejection from either of the Governor or the President.
7. Notice for execution: Minimum period between rejection of mercy petition and its communication to the convicts and his family and the date of execution should be minimum of 14 days period because then “(a) It allows the prisoner to prepare himself mentally for execution, to make his peace with God, prepare his will and settle other earthly affairs.(b) It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.”[5]
8. Communication to family members: The Superintendent of Jail has to inform the family members of the convicts to make sure the timely information and communication of the rejection of the mercy petition in time.
9. Evaluation of Mental Health: It is observed that many times the death row convicts suffer from mental imbalances due to anxiety and suffering from the death row. Therefore the convicts should be provided with the facilities of regular mental evaluation of all the death row convicts.
10. Mental and Physical Report: The execution of the death penalty can be stopped by the Superintendent of Jail in the case where the convict is mentally or physically ill. After the rejection of the mercy petition, it is an obligation for the Superintendent of Jail to check the physical and mental reports of the convicts and satisfy himself on the basis of medical reports by the government doctors and psychiatrists to check the mental and physical health of the convicts. If the Superintendent thinks that he is not than the execution of the convict can be stopped and present the convict before the Medical Board and forward the report of the State Government.
11. Furnishing the document to the convict: “Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc. These documents are a must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary prerequisite to the accessing of these rights, it is necessary that copies of relevant documents should be furnished to the prisoner within a week by the Prison Authorities to assist in making mercy petition and petitioning the courts.”[6]
12. The final meeting between the prisoner and his family: The Prison Manuals provides for the family of the convicts to the meet with the convicts prior to their execution.
13. Post-Mortem Reports: It is obligatory and compulsory to have a post mortem of the executed death convict.

Endnotes

[1]Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 : (2014) 2 SCC (Cri) 1 : 2014 SCC OnLine SC 50 at page 91.

[2] Ibid at ¶244.

[3] Sunil Batra v Delhi Admn, (1978) 4 SCC 494: 1979 SCC (Cri) 155.

[4]Supra at 2.

[5]Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 : (2014) 2 SCC (Cri) 1 : 2014 SCC OnLine.

[6] Id.

References

1. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 : (2014) 2 SCC (Cri) 1 : 2014 SCC OnLine.
2.  Sunil Batra v Delhi Admn, (1978) 4 SCC 494: 1979 SCC (Cri) 155.
3. Indian Supreme Court Changes Stance on Death Penalty: Holds Delay to be a Ground for Commutation available at http://ohrh.law.ox.ac.uk/indian-supreme-court-changes-stance-on-death-penalty-holds-delay-to-be-a-ground-for-commutation/

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